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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

Can a grand jury in one state subpoena a witness, take her testimony and send it to a grand jury in another state . . . to save the witness the trouble to traveling to the other state?

First of all, I think your grand jury site is fascinating--and very much welcome. You're right--most people don't know very much about this integral part of our justice system. I'm a second year law student and I'm trying to solve a research challenge about federal grand juries. I'm hoping you can help.

Here's the issue: Can a grand jury sitting in one jurisdiction take testimony from a witness for a grand jury in another jurisdiction? In other words, if a witness lives in, say, Alabama, and a federal grand jury sitting In Washington state doesn't want to compel him to come to Washington, would it be possible for a federal grand jury sitting in Alabama to take his testimony and send it to the Washington grand jury?

I know this may seem like a silly question, but it's relevant to one case I'm exploring and I haven't been able to find a single rule or any case law that addresses this issue.

Response:

You've asked a very good question. 

    As I am sure you know, Rule 6(e)(3)(C)(iii) allows the transfer of grand jury materials from one grand jury to another.  This is, of course, normally done (a) when the first grand jury failed to indict or its term ended before it could indict/conclude an investigation; (b) when two grand juries are working on the aspects of the same investigation and so need to share information; and (c) in the rare occasions when a grand jury has been investigating an offense and then finds that it does not have jurisdiction to indict because the offense was committed in another district.  (For the latter proposition, see, e.g., In re May 1972 San Antonio Grand Jury,  366 F.Supp. 522 (W.D.Tex. 1973).)  Rule 6(e)(3)(C)(iii) was clearly, I think, intended to authorize evidence transfers in these situations.

     What you are asking, though, is something different, e.g., whether one grand jury can, in effect, take deposition testimony to assist another.  The difference here, of course, would be (if I understand your question correctly) that grand jury A has no interest in the testimony, since it is not relevant to any matters which grand jury A is investigating; grand jury A is subpoenaing the witness and asking the questions simply as a matter of courtesy, to assist grand jury B, which is investigating matters as to which the testimony is relevant.

     Like you, I have not found any cases directly on point (though I have only had a little time in which to look).  I did find In re Grand Jury Investigation of Banana Industry, 214 F. Supp. 856, 859-860 (D.C. Md. 1963), which addressed a somewhat similar situation and found it improper.  As the court said,

             No doubt it would be convenient for the Division to present to the Grand Jury in California a summary of the testimony heard by the Grand Jury in Maryland. But convenience is not the only consideration.            Fairness to the persons whose conduct is being investigated must also be considered. The Court should foreclose any possibility that even an inadvertently unfair summary of the testimony taken before the Grand Jury in Maryland might be presented to the Grand Jury in California.

              It is one thing for the Division to prepare for the use of a grand jury a digest of the testimony which that grand jury has heard, see United States v. United States District Court, 4 Cir., 238 F.2d 713, 721, but quite another thing for the Division to seek an indictment not upon testimony which the grand jury has heard, but upon selected portions of the testimony of one or more witnesses given before another grand jury. Other portions of the testimony of a witness may qualify, explain or even contradict what he said at one point in his testimony.

While one can distinguish this as a pre-Rule 6(e)(3)(C)(iii) case, and as a case in which the grand jury did not get the whole transcript of what the witness aid, I think you can use it to argue that the scenario you propose is improper because it deprives the indicting grand jury (grand jury B) of the opportunity to observe the witness' demeanor and to ask follow-up questions based on the evidence that grand jury has heard and as to which grand jury A was ignorant.

     I also think one can argue that this scenario is implicitly contradicted by the provisions of Fed.R.Crim.Pro. 17(e)(1), which allows the nationwide service of subpoenas.  I have not had a chance to review the history of the rule, but I think it clearly supports the premise I note above, e.g., that a grand jury should hear directly from witnesses having information about the matters it is investigating.

     Finally, I think one might even be able to argue that this could constitute an abuse of the grand jury process.  After all, a grand jury subpoenas a person to testify because it wants to hear what information that person has which is relevant to matters it is investigating.  In the scenario we are discussing, grand jury A has no legitimate purpose for subpoenaing and interrogating the witness, other than to accommodate grand jury B.  I would argue that is improper.

     Let me know if you'd like to discuss this further.  As I said, I find it a fascinating question, and I want to include a discussion of it in the new pocket part for the treatise.  Thank you for bringing it to my attention.

 SWB

2002

  

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